Preston, Cheryl B.
McCann, Eli
2012-12-01T22:57:17Z
2012-12-01T22:57:17Z
2012
91 Or. L. Rev. 129 (2012)
0196-2043
http://hdl.handle.net/1794/12493
48 pages
Part I of this article discusses the dangers of adhesion contracts,
particularly in the online context, where they are most susceptible to
abuse. In Part II, we discuss foundational contract principles,
specifically the transition from feudalism to freedom of contract and
the dramatic shift in the meaning of “freedom of contract” over time.
We begin Part III with a conceptual exploration of how to define an
adhesion contract. We then discuss the history of adhesion
contracting, from early posted notices and over a century of judicial
fracas about whether and when to enforce contract terms printed on
tickets, bills of lading, receipts, and so forth. We describe how a field
of law based on the freedom of the serfs and knowing choice
developed to pre-printed, non-negotiable, universal terms on a form
accepted by implication. In Part IV, we continue with the
developments of the twentieth century, marked by the promulgation
of the Uniform Commercial Code (“UCC”), Restatement (Second) of
Contracts, and consumer protection efforts of the 1960s and 1970s.
Part V describes the erosion of the unconscionability doctrine, the
need for knowing assent, notice, and other boundaries in which
adhesion contracts were contained. We discuss the consequence of the
resulting imbalance and whether the economic benefits analysis
justifies the cost. Part VI returns to feudalism and freedom of contract
to illustrate the need to rethink the enforcement of online contracts.
en_US
University of Oregon School of Law
rights_reserved
adhesive online contracts
Llewellyn Slept Here: A Short History of Sticky Contracts and Feudalism
Article

Klein, Dora W.
2012-12-01T23:05:54Z
2012-12-01T23:05:54Z
2012
91 Or. L. Rev. 207 (2012)
0196-2043
http://hdl.handle.net/1794/12495
40 pages
The cases discussed in this Article concern three general topics: the
culpability of juvenile offenders; mental states and the criminal
process, including the presentation of mental disorder evidence,
competency to stand trial, and competency to be executed; and the
preventive detention of convicted sex offenders.
en_US
University of Oregon School of Law
rights_reserved
juvenile offenders
mental disorder evidence
The Mentally Disordered Criminal Defendant at the Supreme Court: A Decade in Review
Article

Van Wieren, Amanda
2012-12-01T23:19:07Z
2012-12-01T23:19:07Z
2012
91Or. L. Rev. 297 (2012)
0196-2043
http://hdl.handle.net/1794/12498
28 pages
Part I of this Comment describes the framework that the Supreme Court has supplied for deciding the applicability of state and federal rules in the contexts of Erie, preemption, and reverse-Erie. Part II explores the lopsided results achieved under the current reverse-Erie paradigm and proposes an explanation for the apparent bias towards the federal sovereign: premature considerations of preemption come into play when state courts decide whether the rule they are examining is substantive or procedural.
en_US
University of Oregon School of Law
rights_reserved
Indian Law
Reverse Erie
The Silent Sovereign: Tipping the Scales in Reverse-Erie Applications of Indian Law
Article

Macfarlane, Katherine A.
2012-12-01T23:02:24Z
2012-12-01T23:02:24Z
2012
91 Or. L. Rev. 177 (2012)
0196-2043
http://hdl.handle.net/1794/12494
30 pages
In every federal civil case, a defendant must raise its affirmative
defenses in the pleading that responds to a plaintiff’s complaint.
According to Federal Rule of Civil Procedure 8(c), failure to properly
plead, for example, a statute of limitations defense, waives the
defense for good. Rule 8(c) does not exempt any category of
affirmative defense, nor does it forgive unintentional omissions of
certain defenses. It also does not prefer governmental defendants to
others. Yet in habeas corpus cases, the most significant affirmative
defenses to habeas petitions need not comply with Rule 8(c). Instead,
federal courts may raise the affirmative defenses of statute of
limitations, exhaustion of state remedies, procedural default and
nonretroactivity sua sponte even if the defense would otherwise be
waived pursuant to Rule 8(c).
This Article contends that habeas litigation is the worst place to
grant State respondents any sort of procedural favor. Habeas cases
implicate criminal convictions that are fundamentally unfair. And
habeas petitioners need all the help they can get—since the passage of the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA),
the odds of winning habeas relief are akin to the odds of winning the
lottery.
After examining the history of affirmative defenses, the Article
next describes the purpose behind Rule 8(c) and argues that the rule
was meant to be strictly applied. It next explains how federal courts’
willingness to take sua sponte action on behalf of habeas respondents
violates both the spirit and the letter of Rule 8(c). It further argues that
the Supreme Court’s reliance on comity and other policy-based
justifications do not suffice to overcome the Federal Rules of Civil
Procedure, which apply without regard to what sort of case is being
heard. In light of the curtailed substantive paths to habeas relief, it
also contends that habeas cases are the worst candidates for
aggressive sua sponte advocacy that revives affirmative defenses at
the expense of those imprisoned unfairly.
With respect to Rule 8(c), habeas respondents should be treated
similarly to, not differently from, every other civil defendant. The
Article concludes that assisting respondents with sua sponte action in
habeas cases conflicts with the purpose of an adversarial system by
giving an unfair advantage to defendants who need it the least.
en_US
University of Oregon School of Law
rights_reserved
habeas corpus
Sua Sponte
Adversarial No More: How Sua Sponte Assertion of Affirmative Defenses to Habeas Wreaks Havoc on the Rules of Civil Procedure
Article

Bartow, Ann
2012-12-01T22:48:02Z
2012-12-01T22:48:02Z
2012
91 Or. L. Rev. 1 (2012)
0196-2043
http://hdl.handle.net/1794/12491
56 pages
Sex-for-hire is usually illegal, unless it is being filmed. Debates about pornography tread uneasily into legal terrain that implicates freedom of expression under the First Amendment, the specter of censorship, and genuine concerns about the function and role of pornography in persistent gender inequality. It is less common for conversations about pornography to include a discussion of copyright law. Yet copyright law is a powerful tool that operates to protect the financial interests of pornographers. Owners of copyrighted pornography frequently threaten public exposure of an alleged infringer’s consumption habits in order to force a financial settlement. Thus copyright law operates as both a metaphoric legal shield and sword in the hands of pornographers. This Article introduces to the scholarly conversation consideration of how copyright law might be used by opponents of pornography, particularly those who oppose specific types of pornography such as child pornography, so-called “revenge porn,” “crush porn,” or filmed physical abuse. A strong case can be made that such materials do not warrant copyright protection. Copyright protection is not a necessary prerequisite to authorship, publication or circulation. Withholding copyright protection would sharply reduce the economic value of these particular works, but might also give rise to inconsistent or even incoherent decisions by government actors who would be called upon to make difficult assessments between and among types of pornography.
en_US
University of Oregon School of Law
rights_reserved
copyright
pornography
Copyright Law and Pornography
Article

Gevurtz, Franklin A.
2012-12-01T22:52:27Z
2012-12-01T22:52:27Z
2012
91 Or. L. Rev. 57 (2012)
0196-2043
http://hdl.handle.net/1794/12492
72 pages
For years, scholars have debated why parties choose to
incorporate under Delaware law companies that operate businesses in other states—since different answers to this question lead to
different normative assessments of the practice. Traditionally, this
debate focused on public corporations and ignored private firms and
noncorporate forms of business. The exploding use of limited liability
companies (LLCs) instead of corporations, and the formation of LLCs
under Delaware law to operate businesses outside Delaware, call for
expanding this discourse to ask “Why Delaware LLCs?” This Article
adds to the recent literature seeking to answer this question
empirically. It critiques recent studies that looked for statistically
significant correlations between state of formation choices for LLCs
and differences in state LLC statutes and legal infrastructure. Finding
this methodology suffers from inherent limitations, this Article
presents results from a different approach. I interviewed business
attorneys whose clients have formed LLCs and asked them a battery
of questions designed to ascertain why their clients formed LLCs in
Delaware. The results of this survey provide important insights into
the aspects of Delaware’s substantive LLC law and its legal
infrastructure that motivate formation of Delaware LLCs, and thereby
serve as an important complement to the existing statistical studies.
en_US
University of Oregon School of Law
rights_reserved
limited liability companies
Why Delaware LLCs?
Article

Lipinski, Rachael
2012-12-01T23:09:26Z
2012-12-01T23:09:26Z
2012
91 Or. L. Rev. 247 (2012)
0196-2043
http://hdl.handle.net/1794/12496
26 pages
The confusion over navigability for title is understandable in light of the wide range of law needed to comprehend the deceptively simple-sounding navigability-for-title test; a chronological overview of the history of navigability for title thus follows.
en_US
University of Oregon School of Law
rights_reserved
navigability for title
The Dividing Line: Applying the Navigability-for-Title Test after PPL Montana
Article

Flaherty, Maura K.
2012-12-01T23:14:00Z
2012-12-01T23:14:00Z
2012
91Or. L. Rev. 273 (2012)
0196-2043
http://hdl.handle.net/1794/12497
24 pages
Part I provides an introduction to the L3C through a discussion of the form’s potential and “promises” in three contexts: tax and private foundation investment, other private investment, and the broader promise of a new approach to mission-driven work. Part II examines the shortfalls of the L3C in these three contexts. In particular, Part II demonstrates that the current approach to the L3C form lacks tools to hold L3Cs accountable to the priority of charitable purpose. Part III explores a few ideas toward a more comprehensive approach to oversight, including a mandatory information return and specific authority in an oversight figure or body. Ultimately, the viability of the L3C depends on the ability of scholars, practitioners, and legislators to see the form as a work in progress. Thorough analysis and bold creativity can contribute to the L3C’s impact as a form of business and as a vehicle for impactful, inspiring work.
en_US
University of Oregon School of Law
rights_reserved
limited liability company
low-profit limited liability company
A New Vehicle for Mission-Driven Work: Is the Low-Profit Limited Liability Company Right for Oregon?
Article